Employers' Liability Assur. Corporation v. Williams

• Decision Date: 25 February 1927
• Docket Number: (No. 8928.)
• Citation: 293 S.W. 210
• Parties: EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited v. WILLIAMS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

293 S.W. 210

EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited v.WILLIAMS et al.^*

(No. 8928.)

Court of Civil Appeals of Texas. Galveston.

February 25, 1927.

Rehearing Denied March 17, 1927.

Appeal from District Court, Galveston County; J. C. Canty, Judge.

Action by the Employers' Liability Assurance Corporation, Limited, against J. H. Williams and others, wherein defendants answered by way of cross-action.From judgment for defendants, plaintiff appeals.Affirmed.

Vinson, Elkins, Sweeton & Weems, of Houston, for appellant.

Morris, Sewell & Morris, of Houston, for appellees.

LANE, J.

On and prior to the 11th day of September, 1924, J. H. Williams was in the employ of the American Construction Company, a subscriber under the Texas Employers' Liability Act(Vernon's Ann. Civ. St. 1925, arts. 8306-8309).Prior to said date the Employers' Liability Assurance Corporation, Limited, issued to the American Construction Company a policy of insurance, conditioned that it would pay such compensation to the employees of said company as is provided by the liability or Workmen's Compensation Act of the state of Texas, during the continuance of said policy.Such policy was in force and effect on said 11th day of September, 1924.On the date mentioned J. H. Williams, an employee of the construction company, suffered an injury while in performance of his duties as such employee.After suffering such injury, Williams was paid by the plaintiff 32 weeks' compensation at $20 per week.Thereafter Williams filed his claim for compensation with the Industrial Accident Board of the state, praying for a lump sum award.

On the 17th day of June, 1925, said board rendered its decision, awarding to Williams upon his claim compensation as provided by the Workmen's Compensation Act, against the assurance corporation.

In presenting his claim before the Industrial Accident Board, Williams was represented by N. B. Morris, J. B. Sewell, and Larry W. Morris under the firm name of Morris, Sewell & Morris, who were awarded by said board an interest in the award made upon said claim.

In due time, and in manner and form as required by law, and after due notice to the Accident Board, the Employers' Liability Assurance Corporation, frequently referred to herein as assurance corporation, brought this suit in the district court of Galveston county to set aside the award made by the accident board to Williams and his representatives, all of whom are made defendants in this cause, and to contest his right to recover against it any sum whatever.

On the 23d day of September, 1925, the defendants answered by way of cross-action against the plaintiff, as compensation insurers of the construction company, by which he seeks a recovery for total and permanent disability in a lump sum payment on account of injuries alleged to have been sustained by Williams as an employee of the construction company at Texas City on the 11th day of September, 1924, or in the alternative, for such weekly payments as he may be found entitled to receive.

To defendants' cross-action, the plaintiff filed answer, consisting of a general demurrer and general denial.

The case was tried before a jury upon special issues, together with explanations and definitions of legal terms as follows:

"IssueNo. 1.Was the defendant Williams totally disabled as a proximate result of the fall he sustained about the 11th day of September, 1924.Answer `Yes' or `No.'

"In answering the above question, you will be governed by the following: The phrase `total disability' as used in the Workmen's Compensation Act, does not imply an absolute disability to perform any kind of labor, but a person disqualified from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment is ordinarily regarded as totally incapacitated.

"QuestionNo. 2.Will the injuries sustained by the said Williams in said fall be permanent?Answer `Yes' or `No.' "Question No. 3.What do you find from the evidence was the average daily wage of the defendant Williams at the time and before he was injured?Answer, giving the number of dollars per day.

"QuestionNo. 4.What do you find was the average daily wage of an employee of the same class, working substantially the whole of the year immediately preceding September 11, 1924, in a similar employment, in the same neighborhood?Answer, giving the number of dollars per day.

"QuestionNo. 5.Do you find that a failure on the part of the insurance company to pay to the defendant Williams any compensation which he may recover in a lump sum will work a manifest hardship and injustice on said Williams?Answer `Yes' or `No.'

"If you have answered questions Nos. 1 and 2`Yes,' then you need not answer the following questions, but return your verdict, but, if you have not so answered questions 1 and 2, then you will answer the following questions:

"If in answering questions Nos. 6 and 7 you find that the defendant Williams' disability has or will change from time to time, then in answering said questions you will state in your verdict what percentage of disability he will or has suffered from time to time, fixing the number of weeks and the percentage of disability for each respective period of weeks.

"QuestionNo. 6.What percentage of disability did defendant Williams sustain by reason of said injury?Answer by giving the figures showing that percentage.

"If you have answered question No. 2`No'(meaning that he was not permanently disabled), then answer the following:

"QuestionNo. 7.How many weeks' disability do you find said injury produced?

"The burden of proof is on the defendant to establish the issues submitted by a preponderance of the evidence; and by a preponderance of the evidence is meant a greater weight or degree of credible testimony.

"You are the exclusive judges of the facts proven of the credibility of the witnesses, and of the weight to be given to the testimony, but the law you will receive from the court, as herein given you, and be governed thereby."

In answering the issues submitted, the jury found: (1) That J. H. Williams was totally disabled as a proximate result of the fall he sustained about the 11th day of September, 1924; (2) that the injuries so sustained will be permanent; (3) that the average daily wages of Williams at the time and before he was so injured was $8 per day; (4) that the average daily wages of an employee of the same class, working substantially the whole of the year, immediately preceding September 11, 1924, in similar employment in the same neighborhood, was $8 per day; and (5) that the failure on the part of the plaintiff, Employers' Liability Assurance Corporation, to pay Williams any compensation which he may recover in a lump sum would work a manifest hardship and injustice on him.Having made such findings in answer to issues Nos. 1, 2, 3, 4, and 5, the jury, in accordance with the instructions of the court, made no answers to issues Nos. 6 and 7.

Upon the findings of the jury and upon the evidence the court rendered judgment refusing the plaintiff, assurance corporation, the relief prayed for, and also rendered judgment decreeing that the award of the Industrial Accident Board made in the cause on the 17th day of June, 1925, be set aside, canceled, and held for naught, and that the defendantJ. H. Williams, for his own use and benefit, and for the use and benefit of Morris, Sewell & Morris, a firm of lawyers composed of Ned B. Morris, J. B. Sewell, and Larry W. Morris, the attorneys of Williams, recover from the plaintiff, Employers' Liability Assurance Corporation, Limited, the sum of $6,032.15 in a lump sum, together with interest thereon from date of judgment at the rate of 6 per cent. per annum, and costs of suit.It was further decreed that the firm of Morris, Sewell & Morris shall be the owners of a one-third interest in said judgment.From the judgment so rendered the assurance corporation has appealed.

By its first, second, third, fourth, fifth, and sixth assignments appellant insists, substantially, that the court erred in rendering judgment for appellee Williams on his cross-action, same being based upon the answers of the jury to special issues Nos. 1 and 2, in that there is no evidence to support such answers to the effect that Williams sustained total and permanent disability by reason of the injuries of which he complained, but to the contrary, the undisputed evidence shows that he had been working regularly since May 11, 1925, up to the day of the trial, and that he has an earning capacity of $20 per week.

The grounds set forth by Williams in his cross-petition for a recovery of a lump sum settlement, and upon which he now insists that the judgment in his favor should be affirmed, are, substantially, that appellant had shut off and refused to pay him the $20 weekly compensation which it had been paying him on account of his injuries, and therefore he had been compelled to go in debt for borrowed money on which to live pending the trial of this suit; that he has a family dependent upon him; and that he has no means of support other than the compensation which he had theretofore received for his daily labor; and that it would work a manifest hardship and injustice on him, unless the plaintiff is required to pay in a lump sum all of the compensation due to him because of his injury.

It is shown that prior to his injury J. H. Williams was a strong, able-bodied, healthy man, able to do hard manual labor; that he was a skilled carpenter and painter, and had been working as a carpenter and painter for 18 to 20 years; that he had a high school education only; that he had no profession or calling other than that of carpenter and painter; that prior to and at the time of his injury he was earning an average weekly wage of $46.15; that for 32 weeks from the time of his injury up to the 12th day of May, 1925, Williams was paid by appellant assurance corporation...